Mazher v Minister for Immigration and Multicultural Affairs

[2001] FCA 1646

FEDERAL COURT OF AUSTRALIA

Mazher v Minister for Immigration and Multicultural Affairs [2001] FCA 1646

ALI MAZHER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 156 OF 2001

O’LOUGHLIN J
13 NOVEMBER 2001
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 156 OF 2001

BETWEEN:	ALI MAZHER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’OUGHLIN J
DATE OF ORDER:	13 NOVEMBER 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant is to pay the respondent’s costs to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 156 OF 2001

BETWEEN:	ALI MAZHER APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O’OUGHLIN J
DATE:	13 NOVEMBER 2001
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, who claims to be a citizen of Afghanistan, arrived in Australia on 15 January 2001.  His attempts to obtain refugee status have been unsuccessful and he presently seeks from this Court a review of the decision of the Refugee Review Tribunal (“the Tribunal”).  The applicant has said that he is a single man aged twenty-five years and that he is an Hazara of the Muslim faith.  He said that he speaks, reads and writes Dari, but he has no knowledge of English.

2. He said that although he had had no contact with the Taliban, his sister’s husband had been taken away and although the husband had escaped, his whereabouts are not known by the family.

3. The Tribunal accepted many things that the applicant had said.  It accepted that he is a Shiite Muslim and a Hazara; it accepted that he has the features of the Hazara people, and it accepted that he speaks Dari with Hazaragi accent.  The Tribunal also accepted that Hazaras in Afghanistan are targets of discriminatory action by the Taliban, and the Tribunal also accepted that the different lineage of the Hazaras is apparent in their Asiatic features.

4. However, on the other hand, the Tribunal said that it had “grave doubts about the applicant’s credibility”, adding that it could not be satisfied “that he has been truthful about his claims and evidence”.  The Tribunal listed the inconsistencies in his evidence that led to the conclusion that it could not rely on what the applicant had said.  Some of these inconsistencies were important, such as the number of times that the Taliban had attended at his house.  Other inconsistencies were, however, of such a minor nature as to be dismissed.

5. Although this Court cannot intervene I remind the Tribunal that expecting applicants for refugee status to answer a series of “quiz” questions about geography, political figures, dates and designs of flags, can be very misleading.  A cunning, well-versed imposter will know all the answers.  A genuine, frightened applicant may create a misleading impression through his or her lack of knowledge.  There is a need, when considering applications for refugee status, to be both understanding and practical.  There are happy, well-adjusted Australian citizens who cannot remember their motor car registration number, who cannot name the personalities who feature on our currency, who cannot name the premiers and governors of other states, yet they are Australians to the core.

6. However, there were in this case, contradictions of concern.  In his initial interview the applicant said that he had had no contact with the Taliban; that the Taliban had come to his home on one occasion, but he was not then at home.  Later, however, he went so far as to say that the Taliban had come to his home and searched it on three occasions, assaulting his father in the course of one of those searches.  He went further, saying that on each of those occasions he was able to escape into the mountains.  These variations would not fill a fact finder with confidence.  Although I am of the opinion that the Tribunal adopted an overly critical assessment of some of his answers, his inconsistent evidence about his contact with the Taliban, coupled with a doubtful linguistic analysis, which suggested a Pakistani influence, was sufficient to justify the Tribunal in not relying on what the applicant had said.

7. The applicant presented himself to the Australian authorities as an Afghan national who sought protection on the grounds of his race (as an Hazara) and his religion (as a Shiite Muslim).  That was the basis of his claim for refugee status.  He made no other claims.  When the Tribunal found that it was unable to accept that he was an Afghan national the whole of his evidence concerning his fears about the Taliban became meaningless.  The Tribunal was correct in reaching its decision.  The application must be dismissed and the applicant must pay the respondent’s costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated:             13 November 2001

The Applicant appeared in person:
Counsel for the Respondent:	Ms S Maharaj with Ms E Reed
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 November 2001
Date of Judgment:	13 November 2001